ARGUED MARCH 6, 1967.
DECIDED APRIL 5, 1967.
Action for damages. Fulton Civil Court. Before Judge Williams.
Moreton Rolleston, Jr., for appellant.
Robert B. Harris, Nancy Pat Phillips, Sutherland, Asbill Brennan, D. R. Cumming, Jr., W. Laurens Walker, J. Robert Coleman, for appellees.
Since the amended petition, construed against the plaintiff and in the light of its omissions as well as its averments, shows that the plaintiff's alleged loss of its equity in its property sold under power of sale in a security deed, for which it seeks a recovery, was not proximately caused by any acts or omissions of the appellee-defendant, the judgment sustaining the renewed general demurrer thereto was not error.
ARGUED MARCH 6, 1967 — DECIDED APRIL 5, 1967.
Appellant, plaintiff below, brought an action against The Oxford Finance Companies, Inc. and Security Mortgage Corporation for damages allegedly caused by the defendants' cancellation of their second mortgage commitment to the plaintiff and the resulting foreclosure sale of the plaintiff's realty with a building thereon under a security deed by Citizens Southern National Bank, which was also the assignee of Oxford's commitment as well as of a first mortgage commitment to the plaintiff by Mutual Benefit Life Insurance Company. The petition as amended alleged that the value of the plaintiff's land and "substantially completed" building at the time of the foreclosure sale was $2,415,000; that the loans against such land and building amounted to $1,300,000 and would have totalled $1,600,000 if defendant Oxford had honored its allegedly existing commitment; that C. S. Bank had advanced $1,300,000 and held plaintiff's note and security deed as a first lien on the property; and that the plaintiff's equity in the property at that time was the difference between the total of the first and second mortgages and the total value of the property, or the sum of $815,000, for which amount the plaintiff sues. It is alleged that, after the foreclosure sale, C. S. Bank assigned to plaintiff all of its right, title and interest in and to Oxford's commitment as well as all of its claims or right of action against Oxford arising out of Oxford's alleged commitment cancellation. The appeal is from the judgment of the trial court sustaining the renewed general demurrer of defendant Security Mortgage Corporation to the petition as finally amended.
Even assuming the existence of a binding loan commitment to the plaintiff on the part of the appellee, the amended petition, properly construed, shows that the alleged cancellation of such commitment was not the proximate cause of the plaintiff's alleged damages.
"When considered on general demurrer . . . a petition must be construed most strongly against the pleader; in applying this rule the petition will be construed in the light of its omissions as well as its averments. Mackler v. Lahman, 196 Ga. 535, 537 ( 27 S.E.2d 35); Toler v. Goodin, 200 Ga. 527, 534 ( 37 S.E.2d 609). The pleader's failure to allege essential facts and his reliance upon allegations that fall short of essential facts will be construed to import the absence of those facts. Hulsey v. Interstate Life c. Ins. Co., 207 Ga. 167, 170 ( 60 S.E.2d 353); Sterling Materials Co. v. McKinley, 218 Ga. 574 (1) ( 129 S.E.2d 770)." Covil v. Robert Co. Associates, 112 Ga. App. 163, 168 ( 144 S.E.2d 450). "If an inference unfavorable to the right of a party claiming a right under such pleadings may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties." Chalverus v. Wilson Mfg. Co., 212 Ga. 612 (1) ( 94 S.E.2d 736).
Under Georgia law, the grantee-seller under power of sale in a security deed has a duty to sell the property at its fair market value. Langley v. Stone, 112 Ga. App. 237, 239 (2) ( 144 S.E.2d 627). In the absence of any allegation that the security deed under which the plaintiff's property was sold contained a provision relieving the grantee-bank of this duty, it must be assumed that the duty was incumbent on it. The allegations that the fair market value of the property at the time of its sale was $2,415,000, that the total amount of outstanding loans thereon was $1,300,000 and that the plaintiff's equity therein was $815,000, for which it sues, can be construed to mean only that the property was sold for at least $815,000 less than the alleged fair market value. So construed, the petition fails to state a cause of action against the appellee, since it shows that the proximate cause of the alleged loss of the plaintiff's equity was the grantee-bank's failure to conduct its foreclosure proceedings in accordance with the duty required of it under the law hereinabove stated, rather than any act or omission of the appellee-defendant.
Accordingly, the court did not err in its judgment sustaining the renewed general demurrer to the petition as amended.
Judgment affirmed. Hall and Eberhardt, JJ., concur.